Love ‘em or hate ‘em, Settlements are not illegal

If you think the West Bank settlements have been an albatross around Israel’s neck up until now, brace yourself. With the new governing coalition announced this week, and the settlers enjoying even more power, all bets are off.

As Barak Ravid writes in Haaretz about Israel’s new government, "it seems that most of the key positions will be filled by settlers and their supporters."

Since “Jewish settlements” are two of the most hated words in international diplomacy, we can expect that, peace process or no peace process, the pressure on Israel to stop its settlement activity will only get worse.

This pressure will be fueled by the global campaign to isolate and delegitimize the Jewish state, commonly known as Boycott, Divestment and Sanctions (BDS).

What should Israel do in response to this pressure?

If it were up to me, I’d call a good lawyer.

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That’s right, not a PR genius or a brilliant policy analyst, but a lawyer.

The most severe charge against Israel is a legal one. Let’s face it: The whole movement to delegitimize the Jewish state is based on this one accusation that the occupation of the West Bank is an illegal enterprise.

Much of the world has bought into the Palestinian narrative that Israel stole their land and needs to give it back.

It’s fine for Israel to keep repeating “we want peace” and “we’re ready to negotiate,” but if people think you’re a thief living on stolen land, it doesn’t have quite the same impact.

That’s why, even though one can argue that the Palestinians deserve most of the blame for the failure of the peace process, it is Israel that gets the blame.

Outlaws rarely get the benefit of the doubt.

A good lawyer would look at this mess and tell Israel: Until you can make a compelling case that you’re not an “illegal occupier,” nothing good will happen. Even friendly acts like freezing settlement construction will only reinforce the perception of your guilt.

As it turns out, and to the shock of many, a commission led last year by the respected former Israeli Supreme Court justice Edmund Levy did, in fact, conclude that “Israeli settlements are legal under international law.” (You can Google it. It’s pretty convincing.).

“The oft-used term ‘occupied Palestinian territories’ has no basis whatsoever in law or fact,” Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and a member of Levy’s commission, wrote recently in USA Today.

“The territories are neither occupied nor are they Palestinian. No legal determination has ever been made as to their sovereignty, and by agreement between Israel and the Palestinian Liberation Organization, they are no more than ‘disputed’ pending a negotiated solution, with both sides claiming rights to the territory.”

Baker adds that Israel has “solid legal rights” to the territory, including “the rights granted to the Jewish people by the 1917 Balfour Declaration, the 1923 San Remo Declaration, the League of Nations Mandate instrument and the United Nations Charter,” and that the Oslo agreements “contain no prohibition whatsoever on building settlements in those parts of the territory agreed upon as remaining under Israel's control.”

The reason this point of view is so shocking to many is that it’s hard to separate one’s emotion from the law. In other words, you can love or hate the settlements on moral or strategic grounds, but that doesn’t make them illegal. “Disputed” is light years away from “illegal.”

What’s truly illegal and immoral, if you ask me, is how Israel’s enemies have exploited the dispute to try to delegitimize Israel as a criminal state worthy of the most extreme boycotts and condemnations.

So, given all this, why did the Israeli government not take advantage of the Levy report to push back and defend its honor? My guess is that they felt it would be too controversial and would only complicate things.

After all, since Israel has already shown a willingness to offer up land for peace, why make a big fuss over having a legal right to that land?

Well, for one thing, because you can’t make a deal if you’re seen as a thief who has stolen property. The other side has no reason to negotiate-- all they want is for you to return their stolen property. Your concessions have no value.

But if you assert your legal right to the land, you give your concessions real value and give the other side an incentive to negotiate.

Beyond the dynamics of the peace process, Israel’s failure to champion its legal rights has allowed dangerous movements like BDS to continue to wreak havoc. BDS is an anti-Israel runaway train. It sponsors hundreds of Israel Apartheid Week events around the globe. Its mission is not to seek peace but to isolate Israel as a criminal state, and its major piece of evidence is the “illegal occupation."

No amount of clever PR can rebut that evidence.

Israel’s best hope is to fight back by making a compelling legal case in international courts, while unleashing a global diplomatic offensive around this clear and simple message:

“According to international law, Israel has a legal right to settle in the West Bank. After 45 years, Israeli settlements account for less than 2% of the territories. Our willingness to dismantle settlements and give up precious land for a hope of peace-- which we’ve demonstrated in the past-- is not an endorsement of the spurious accusation that settlements are illegal. It’s a statement of how much we value peace."

“What is illegal, immoral and unacceptable is the attempt to use this dispute to delegitimize the Jewish state.”

This message is sure to trigger a few heart attacks at the United Nations, but the fact that it goes against the conventional wisdom is precisely why the legal case must be made. Silence in the face of accusation only conveys guilt and nourishes the forces that are out to delegitimize the Jewish state.

For far too long, while being hypnotized by the peace process, Israel has let its enemies portray its presence on the West Bank as a criminal act. This unchallenged narrative has not only undermined the peace process, it has damaged Israel’s standing beyond all proportion.

If Israel doesn’t respond directly and soon, its global isolation will only worsen.

You can hate and criticize the settlements all you want and still push back against unfair accusations that they are illegal. One doesn’t preclude the other. Any good lawyer understands that.

Maybe instead of looking towards Madison Avenue to defend itself, Israel’s new government should look towards Century City.

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